Annual Update 2009 - Introduction

Recently I listened to a bright, accomplished young man tell a group of LGBT activists that it was time for the community to unite around the strategy that has won civil rights for other groups in America: a sweeping federal civil rights bill.

He got an enthusiastic response. And he’s hardly alone. Calls for the LGBT community to follow the “historic” model for ending inequality, a broad federal law, are appearing on blogs, in discussion groups, and in political conversations among LGBT people all over America.

There is, however, something deeply wrong with the idea: It has its history dead wrong. A single, federal solution is not how any movement for progressive change has worked in America.

The speaker I heard, like almost everyone talking about this, used the African-American civil rights movement of the 1960s as his template example of how change works. His proof of the “big federal law” approach was the great Civil Rights Act passed by Congress in 1964. But that Act—great as it was—was neither a comprehensive equality law nor the single policy change that brought about legal equality (which some, including myself, would say is still a work in progress).

In the 1964 Civil Rights Act, Congress banned most forms of employment and public accommodations discrimination based on race. It also banned discrimination by federal grantees. But the 1964 Act was preceded by the 1957 Civil Rights Act, a limited voting rights law. And it was followed by the critically important 1965 Voting Rights Act, the 1968 Housing Discrimination Law, and the 1972 law that banned discrimination in schools.

Those laws were hardly the end—Congress has since passed other important civil rights laws on race. And this list leaves out Congress’s 19th century laws against government discrimination— maybe the most important civil rights laws ever passed—and against public accommodations discrimination (the latter was derailed by the U.S. Supreme Court—keep that in mind, you who are anxious to hurry there now).

ACLU Lesbian & Gay Rights Project staff and supporters in 1987.

But the “single” law isn’t the only thing wrong with this argument about how change in America works; the idea that reform starts and ends with the federal government is also wrong.

Returning again to race as the paradigm, the movement to ban slavery began in the states, not with the Emancipation Proclamation and the 13th Amendment. Many states banned segregation long before the federal government got around to it in 1955—some in the 19th century. And if Congress did pass one of the first laws against public accommodations discrimination, states took up the task in the late 19th Century after the Supreme Court struck the federal law down. Congress didn’t try again until 1964.

Even the jewel in the crown of the ’64 federal Civil Rights Act, the ban on employment discrimination, was not Congress making groundbreaking change. New York passed the first statewide employment discrimination law 19 years earlier in 1945. 24 states had already passed laws against employment discrimination when Congress finally did.

You might think that when Congress or the federal courts does act, that is the end of a civil rights struggle, or at least the legal part of it. But that isn’t right either. Federal law typically doesn’t go as deep as state and local law. State employment laws reach small employers while federal law doesn’t. Limitations in federal public accommodations law have made state law the recourse of choice in most states.

None of this is to disparage the crucial role of federal laws. The passage of the 1964 Civil Rights Act was a defining moment in the struggle of African- Americans for equality. It marked the emergence of a national understanding that discrimination was wrong. The nation understood how important it was at the time.

But that dramatic fight which redefined the conscience of the nation didn’t start in Washington. The groundwork for it was laid in the states. The story of the legal battle for civil rights in America is like the story of most battles for progressive change. Change comes first in the most progressive cities and states, moving out to more moderate states until, usually when 40 to 60 percent of the states have acted, the federal government acts. The federal action is then used to pressure more recalcitrant states to embrace the emerging national consensus.

The movement for LGBT rights is following this time-honored pattern. Congress is probably ready to pass a law on employment discrimination. That’s hardly surprising. About half the population is covered by the state laws we’ve been passing since 1982.

The Employment Non-Discrimination Act (ENDA), of course, will not bring about full equality. That it won’t points up the other weakness of the “big federal solution” argument: Not all civil rights struggles are the same. For African-Americans, the two most important legal achievements were probably securing the right to vote and the right to be free of employment discrimination (okay, let’s add school desegregation and make it three). Laws against interracial marriage, by the way, weren’t near the top of most lists.

For the LGBT community, family, recognition of relationships and parenting, and schools probably top the list, along with gender identity discrimination, which is pretty all-pervasive. The first two— family and schools—are areas in which most of the law is made by states. That’s partly tradition, but it is also partly a reflection of the federal government’s limited power. Desirability aside, it is very doubtful that the federal government has the power to create a nationwide marriage system, or a nationwide adoption and foster case system.

This isn’t to say that there aren’t important things to do in Washington. I think ENDA will help cement a nationwide norm that employment discrimination based on sexual orientation is wrong. Congress needs to repeal the military ban and its refusal to recognize the marriages and other relationships of same-sex couples. And doing so will help forge a national norm on equality.

But federal law is not going to be the complete answer. Just as it hasn’t been on race, sex and disability. And we are not going to get federal help until we’ve laid the groundwork in the states. Just as it was with race, sex and disability.

It would be nice if we could fix everything with one sweeping act—nice too if we could count on a bunch of lobbyists and lawyers in DC to take care of it for us so we could just get on with our lives.

But that isn’t how change happens either. Change happens because attitudes begin to change. And that happens because people get laws against discrimination in cities and towns and create a public dialogue. It happens when they get their employers to adopt domestic partnership plans, and start conversations in the workplace.

It happens because LGBT people talk to their closest friends and neighbors, and tell them what it is like to be gay. When people truly understand how ordinary—sorry folks—LGBT people are, but how challenging discrimination makes their lives, they change their thinking. They become real allies. And that’s how things change.

Passing a local law sounds like a lot of work. Having a conversation or two (or three) sounds easy. For most people, it turns out that it is actually easier to get the law passed. The ACLU is ready to help you with both. We’ve got step-by-step help on passing local laws and workplace polices. We’ve got a website that explains why conversations are so important and how to have them.

We can make it easy. But only you can do it. You want equality? Forget the federal cavalry. You can do this one yourself. In fact, you’ve got to.